*1 Case is called. Counsel state their appearances.

Pursuant to the Order dated February 20, 2024 (Dkt. No. 49), Defendants filed a motion to quash and/or motion for protective order regarding third party subpoenas served by Plaintiff. Defendants also seek an award of expenses. (Dkt. No. 50.) Plaintiff filed an opposition. (Dkt. Nos. 53-54.) Defendants filed a reply. (Dkt. No. 55.) The matter came on for hearing.

The court has categorized the 12 subpoenas at issue, which are attached to Mr. Gerber's declaration, as follows:

The scope of discovery under Rule 45 “is the same as that applicable to Rule 34 and the other discovery rules.” Advisory Comm. Notes to 1970 Amendment. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “District courts have broad discretion in determining relevancy for discovery purposes.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005).

In this action, Plaintiff Julie Ann Goldberg filed a First Amended Complaint (“FAC”) for malicious prosecution. The FAC identifies the following lawsuits in the Superior Court for Los Angeles County (“Superior Court”): (1) First Civil Action, Ruano v. Goldberg, Case No. 22VECV01054 in Superior Court; (2) Restraining Order Petition, Ruano v. Goldberg, Case No. 22VERO00392 in Superior Court; and (3) Second Civil Action, Monteleone v. Goldberg, Case No. 22VECV00402 in Superior Court. The FAC also identifies a California State Bar complaint filed by one or more defendants, false police reports, and other communications. (E.g., FAC ¶¶ 20-22, 33, 44.) At the hearing, Plaintiff mentioned that additional State Bar complaints have been filed.

For ease of reference and to reduce duplication, the court addresses the subpoenas to Defendants' attorneys out of order.

In this malicious prosecution action under California law, state law governs the application of the attorney client privilege. Fed. R. Evid. 501.

A client “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” Cal. Evid. Code § 954. “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” Costco Wholesale Corp. v. Superior Ct., 47 Cal. 4th 725, 733 (2009). If the proponent of the privilege satisfies that burden, “the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” Cal. Evid. Code § 917(a); Costco, 47 Cal. 4th at 733.

*2 A client, however, “cannot protect unprivileged information from discovery by transmitting it to an attorney.” “ ‘Obviously, a client may be examined on deposition or at trial as to the facts of the case, whether or not he has communicated them to his attorney.’ ” Id. at 735 (citation omitted).

The attorney client privilege may be waived. Waiver occurs “with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” Cal. Evid. Code § 912(a).

Specifically, a person or entity seeking discovery “can show waiver by demonstrating that the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action.” S. Cal. Gas Co. v. Public Utils. Comm'n, 50 Cal. 3d 31, 40 (1990); see also Mitchell v. Superior Ct., 37 Cal. 3d 591, 605 (1984) (reliance on advice of counsel to show party acted reasonably constitutes waiver of attorney client privilege). Advice of counsel requires a showing of good faith reliance on advice of counsel after truthful disclosure of all relevant facts. Nunez v. Pennisi, 241 Cal. App. 4th 861, 876 (2015); Roche v. Hyde, 51 Cal. App. 5th 757, 827-28 (2020) (defendants may show they “ ‘have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer’ ” in filing and maintaining action) (citation omitted). “[A]fter the court has determined the privilege is waived or an exception applies generally, the court to protect the claimant's privacy may conduct or order an in camera review of the communication at issue to determine if some protection is warranted notwithstanding the waiver or exception.” Costco, 47 Cal. 4th at 740; In re Lifschutz, 2 Cal. 3d 415, 436 (1970) (patient psychotherapist privilege).

The attorney client privilege does not apply “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” Cal. Evid. Code § 956. To invoke this exception, the party seeking discovery “must make a prima facie showing” that the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud. State Farm Fire & Cas. Co. v. Superior Ct., 54 Cal. App. 4th 625, 643 (1997). It is unnecessary to show a completed crime or fraud; the crime fraud exception “ ‘applies to attorney communications sought to enable the client to plan to commit a fraud, whether the fraud is successful or not.’ ” Favila v. Katten Muchin Rosenman LLP, 188 Cal. App. 4th 189, 220 (2010) (citation omitted). The focus is on the intent of the client as opposed to the intent of the lawyer. Id. at 645 (examining whether law firm's services “were retained and utilized to enable [the client] to commit a crime or a fraud” and whether there is “reasonable relationship” between attorney-client communication and crime or fraud). For example, in one case, the court found a prima facie showing based on evidence that the client's communications with counsel were made as part of an investigation that resulted in the attorney's fraudulent letter. BP Alaska Exploration, Inc. v. Superior Ct., 1999 Cal. App. 3d 1240, 1247-49, 1268-69 (1988).

*3 Plaintiff served subpoenas upon Defendants' prior attorneys in the actions that form the basis of her malicious prosecution claims: Stephen D. Wegman, Seth C. Bowen and Timothy R. Hagan. (Dkt. Nos. 66-68; Exhs. B-D to Gerber Decl.) Although Plaintiff agrees that the subpoena to Sandra Nutt has not yet been served, Plaintiff urges the court to include Ms. Nutt in its discussion to avoid duplicative proceedings. (Opp. at 19.) Defendants did not object in the reply brief.

Defendants assert the attorney client privilege. Plaintiff argues that discovery is appropriate based on two grounds: (a) Defendants' assertion of advice of counsel as the Tenth Affirmative Defense in this action and (b) the crime fraud exception.

In response, Defendants state that their advice of counsel defense is limited to (1) Mr. Zola's legal advice in initiating the First Civil Action and Second Civil Action, and (2) Mr. Hanigan's advice in dismissing the Second Civil Action. (Gerber Decl. ¶ 9.) At this stage of the proceedings, the subpoena recipients have not produced documents or served privilege logs. It is unknown which documents will be produced and which documents will continue to be withheld. The court does not have sufficient information in the record before it to address the arguments regarding the scope of Plaintiff's waiver based on advice of counsel as to certain attorneys or time frames.

Defendants do not respond to Plaintiff's showing based on the crime fraud exception other than to object to the evidence. As discussed above, the party seeking discovery “must make a prima facie showing” that the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud. State Farm, 54 Cal. App. 4th at 643. Plaintiff relies on two theories of crime or fraud: false statements and threats. With respect to false statements, Plaintiff's most complete presentation appears to be her response to the State Bar dated September 17, 2022 with attachments and an index.[1] (Exh. BB, Dkt. No. 54-2 at 13.) With respect to threats, Plaintiff refers to communications between Mr. Zola or a member of his law firm, on the one hand, and Luis Ruano, on the other hand, on September 14, 2021 at about 1:51 p.m. The court has been unable to locate documentation of that communication in the exhibits. Again, however, the subpoena recipients have not produced documents or serve privilege logs. Accordingly, the court does not have a sufficient record to rule on the crime fraud exception.

The subpoenas also request the billing and payment records for Ms. Ruano, Mr. Monteleone or Barones as applicable to the underlying actions that form the basis of the malicious prosecution claims. Defendants assert the attorney client privilege, although the parties did not brief this issue as applied to bills and payments. In California, the “attorney client privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney's legal advice or representation.” Los Angeles Cnty. Bd. of Supervisors v. Superior Ct., 2 Cal. 5th 282, 293 (2016). “What the inquiry turns on instead is the link between the content of the communication and the types of communication that the attorney-client privilege was designed to keep confidential. In order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose.” Id. at 297.

*4 The Bd. of Supervisors case addressed the question of whether the attorney client privilege covered invoices for legal services. The California Supreme Court found that invoices for legal services “are communicated for the purpose of billing the client and, to the extent they have no other purpose or effect, they fall outside the scope of an attorney's professional representation.” Id. at 295. That said, “[t]o the extent that billing information is conveyed ‘for the purpose of legal representation’ – perhaps to inform the client of the nature or amount of work occurring in connection with a pending legal issue – such information lies in the heartland of the attorney-client privilege.” Id. at 297.

Consistent with Bd. of Supervisors, and with proportionality under Fed. R. Civ. P. 26(b)(1), the court grants Plaintiff's motion to modify the requests for billing and payment records. The pertinent requests are limited as follows:

Plaintiff served a subpoena on Jonathan Gerber seeking documents in the First Civil Action and the appeal therefrom. (Dkt. No. 62; Exh. A to Gerber Decl.) It appears Mr. Gerber began representation in that action on August 24, 2023. No documents are sought from this federal action.

Plaintiff has not articulated a basis for seeking privileged documents from Mr. Gerber under either a theory of waiver or the crime fraud exception. Plaintiff argues that Mr. Gerber may face liability under Zamos v. Stroud, 32 Cal. 4th 958 (2004). In Zamos, the California Supreme Court recognized that an attorney may face liability for malicious prosecution when “continuing to prosecute a lawsuit discovered to lack probable cause.” Id. at 970. Plaintiff, however, does not cite any authority for the proposition that Zamos provides a basis for discovery of documents otherwise protected by the attorney client privilege.

Plaintiff served a subpoena upon Littler Mendelson P.C. (Dkt. No. 64; Exh. E to Gerber Decl.) The subpoena calls for production of the retainer agreement and all documents relating to Memari v. Barones, Case No. 19STCV27709.

As relevant here, Laura Ruano alleged, in the First Civil Action, that Luis Ruano's son, Luis Roberto Ruano II (“Ruano II”) was employed by the Goldberg law firm in March 2019. (Complaint ¶¶ 13-15, Exh. E to Goldberg, Dkt. No. 54-1 at 51.) Laura Ruano alleged that she and her father (Thomas Monteleone) employed Ruano II to assist with legal matters for their restaurant (Barones) on the understanding that Goldberg would be supervising his work. (Id. ¶¶ 14-17.) Laura Ruano alleged that Goldberg represented that she was an attorney for Laura Ruano. (Id. ¶¶ 19, 24-25.) Goldberg worked in exchange for discounts on food at the restaurant. (Id. ¶ 21.) Laura Ruano alleged that Goldberg's work included an “arbitration agreement for Plaintiff” that would protect against employee lawsuits and mediation contracts, and Goldberg had access to the business' valuation. (Id. at ¶¶ 21-23, 27.) Laura Ruano also alleged that Goldberg defended against a former employee's lawsuit against her. (Id. ¶ 28.) Laura Ruano alleged that Goldberg billed for her services. (Id. ¶ 26.)

These allegations are detailed in Laura Ruano's declaration dated February 1, 2022 (Dkt. No. 54-1 at 90-95) and in Thomas Monteleone's declaration dated February 1, 2022 (Dkt. No. 54-1 at 125-26), both filed in the Dissolution Action. Laura Ruano's declaration attaches the arbitration agreement and mediation agreement that Laura Ruano alleges was prepared by Ruano II and Goldberg. (Laura Ruano Decl. ¶¶ 8-9, 23 & Exh. C, Dkt. No. 54-1 at 106-110.)

*5 In summary, Goldberg denies these allegations and specifically denies representing Laura Ruano, Thomas Monteleone, and/or Barones. Goldberg contends that Littler Mendelson represented Laura Ruano, Thomas Monteleone and/or Barones in connection with the arbitration and mediation agreement, and the lawsuit entitled Memari v. Barones, Case No. 19STCV27709.

At the hearing, Defendants agreed that Littler Mendelson could produce, in response to the subpoena any drafts or executed settlement agreements exchanged with the opposing party in Memari v. Barones. To the extent Plaintiff asserts the attorney client privilege to any other documents, including any arbitration and medication agreement prepared by Littler Mendelson and/or attached as Exhibit C to Laura Ruano's declaration, the court requires a privilege log.

Plaintiff served subpoenas upon third parties Microsoft Corp., Google LLC, and AT&T Wireless. (Dkt. Nos. 57, 61, 65; Exhs. F-H to Gerber Decl.)

For the reasons stated on the record, Mr. Gerber will be ordered to inform each of these third parties to make its document production solely to Mr. Gerber, who will preserve the productions until the termination of this case. Mr. Gerber will be ordered to inform each of these third parties to serve any custodian declaration on counsel for both Plaintiff and Defendants.

Plaintiff alleges that Mr. Zola or someone at his law firm threatened Luis Ruano if he did not take certain actions in the Dissolution Action. Ruano v. Ruano, Case No. 21VEFL00184, Superior Court for Los Angeles County. Mr. Zola is deceased.

Within 30 days after Mr. Gerber receives the productions, Mr. Gerber will search for and produce from these productions any communications between Mr. Zola or any member of his law firm, on the one hand, and Luis Ruano, his son Luis Roberto Ruano II, Ms. Goldberg, her law firm, or any member of her or her law firm's staff, on the other hand.

Plaintiff served subpoenas upon third parties American Express Co. and Bank of America for Laura Ruano, Thomas Monteleone, and Barones. (Dkt. Nos. 56, 58-60.)

In the Order dated February 20, 2024, the court ordered counsel to confer regarding a proposal to resolve these subpoenas. The court and counsel conferred further on the record at the hearing.

For the reasons stated on the record, Mr. Gerber will be ordered to inform each of these third parties to produce the responsive documents to Mr. Gerber. Mr. Gerber's law firm will then redact information and produce the following:

In addition to the information provided to Mr. Gerber by Defendants, Plaintiff may provide a list of attorneys or investigators in the First Civil Action, Restraining Order Petition, Second Civil Action, Memari v. Barones, or California State Bar complaints.